116 N.Y. 459, McClain v. Brooklyn City Railroad Co.

Citation:116 N.Y. 459
Case Date:November 26, 1889
Court:New York Court of Appeals

Page 459

116 N.Y. 459

JOHN MCCLAIN, Respondent,



New York Court of Appeal

November 26, 1889

Argued October 16, 1889.

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[Copyrighted Material Omitted]

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Samuel D. Morris for appellant.

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Charles J. Patterson for respondent.

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The action was brought to recover for personal injuries of the plaintiff, alleged to have been occasioned solely by the negligence of the defendant. On January 24, 1885, when the plaintiff, with a small boy in his arms, was proceeding to cross Fulton street, in the city of Brooklyn, on foot, he was overtaken and knocked down by a team of horses drawing one of the defendant's street cars. This occurred between five and six o'clock in the afternoon, when the cars there were closely following each other, and thus materially interrupting passage across the street. The plaintiff, after waiting several minutes on the east side of Fulton street for an opportunity to cross over it, stepped behind and close to a car on its way out of what was known as the bridge depot switch into and southerly up Fulton street, and followed it closely until the car reached the latter street and partially halted, and then the plaintiff started to go across to the west side of the street. He nearly reached the outer rail of the

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up-track when he was run against by the off-side horse of the team of a car which came out of the switch on another track into Fulton street, a short distance back, northerly of the place where the car, which the plaintiff followed, entered it, and was proceeding in the same direction.

While the defendant had the right to run its cars upon the street, its duty was to use reasonable care so as to do no unnecessary injury to persons traveling upon it. Whether the defendant was, on this occasion, chargeable with negligence, was a question of fact properly submitted to the jury. There was evidence tending to prove that the defendant's driver of the horses attached to the approaching car, saw the plaintiff on the track in advance of the team, and had the opportunity to observe the danger in which the rapid progress of the horses might place him, and yet made no effort to slack their movement or deviate their course so as to avoid the collision, although the plaintiff was at or near the outer rail at the time it occurred; but that, on the contrary, the speed of the horses was accelerated very considerably as they approached him.

The circumstances, as represented by the evidence on the part of the plaintiff, warranted the conclusion that by the exercise of the reasonable care, which it was the duty of the defendant's driver to observe, the injury would have been avoided.

But this fault, on the part of the defendant, did not charge it with liability, unless the plaintiff was free from negligence contributing to the calamity. This was a close, and the more difficult question upon the evidence. The plaintiff was somewhat familiar with the situation in that locality, and knew something of the extent of street car service there. He was, therefore, able to appreciate the necessity of careful observation in going upon the street to keep out of the way of moving cars, and to see that his course was clear. For that purpose it was incumbent on him to use due care. His precautionary duty in that respect, for his protection, may not have been so great as that imposed upon one crossing a steam car railroad, because a train on the latter is not subject to control as is, to

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some extent, the team drawing a street car. But, as a street car must continue on the rails of its track, persons otherwise traveling on the street are required to use care to keep out of its way, yet for their protection the duty rests upon the driver to keep his horses reasonably within his control upon the public streets. (...

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